It is commonly accepted now that the promise that helped Narendra Modi sweep the 2014 polls – to create two crore jobs annually – was only an election gimmick. In the last four years, the employment scenario has actually worsened, particularly post demonetisation and the Goods and Services Tax. There is no official source of data on employment for the current years, as the Modi government has not only suspended all statistical surveys, but is withholding the annual NSSO employment report which shows unemployment at its highest in 45 years.

However, if we rely on the surveys conducted by the Centre for Monitoring the Indian Economy (CMIE) of more than 1,70,000 households available from 2016, the figures are startling. Studies based on this data show that the number of employed rose from an average of 40.1 crore in January-April 2016 to 40.3 crore in May-August 2016 and to 40.65 crore in September-December 2016, before falling to 40.5 crore in January-April 2017.

This trend of declining employment after demonetisation continued: employment fell to 40.2 crore in the first quarter of 2018-19. This effectively means that from early 2016 to the first quarter of 2018-19, only ten lakh jobs were added in total.

Other studies, based on budget documents and Public Enterprise Surveys, have also shown that from 2014 to 2017, nearly 3.35 lakh jobs were lost in the public sector alone.

In order to avoid hard questions from the electorate who were promised these jobs, especially in its core, upper-caste vote bank, the Bharatiya Janata Party has scripted a new diversion: a 10% reservation for ‘economically weaker sections’, which excludes the classes – SCs, STs and OBCs – who have existing quotas.

And the opposition, instead of exposing the illegal and unconstitutional script, is trying to grab its share in the shortcut to garner votes.

Why is this unconstitutional?

India was a poor country when it won its independence, but it agreed that affirmative action should be used only as a remedy for the historic oppressions of caste. Fifty years later, in Indra Sawhney vs Union of India (1992), the Supreme Court clearly upheld this view – that exclusively economic criteria cannot be the basis of reservations.

But the government claims that it is helping the poor. So let us ask: Who is poor in India?

In the latest available data (the NSSO rounds in 2011-12), of the total population of Scheduled Tribes, more than 43% fall below the poverty line (Tendulkar line).

Of the Scheduled Caste and Other Backward Classes, more than 29% and 21% respectively are below the Tendulkar line.

Of other social classes – not SC, ST, or OBC category – the population below the poverty line is 12.5%.

Remember that these are figures of the population below poverty line (BPL). (Note that the poverty line in India has never been set on the basis of income, because of the unreliability on the income data.) Yet the BJP’s new legislation declares persons earning below Rs 8 lakh per annum as economically poor. The proportion of people from socially marginalised groups under this new line will be even higher.

Effectively this amendment is not only unconstitutional because it sets up economic status as the sole criteria for affirmative action. It is also unconstitutional for excluding the majority of the ‘economically weaker’ population, precisely on the grounds that they are from socially backward communities.

Why 10%?

Another constitutional failure is how arbitrarily the government reached the figure of 10% for EWS.

This was not the case with the 49.5% reservation for ST, SC and OBC (7.5%, 15% and 27% respectively). The numbers for SC and ST were fixed in proportion to their population, and in the case of OBCs, the figure of 27% for nearly 54% of India’s population was fixed by the Supreme Court to preserve the 50% cap on all reservation.

Moreover, reservations for backward classes began only in 1990, even though the First Backward Class Commission submitted its recommendations as early as 1953. The government’s decision to amend the constitution to fix 10% quota for EWS is only arbitrary, as no study – by the government or by individual scholars – justifies the figure.

To put Indians from socially- and educationally-backward classes and those not from socially backward classes at par, while limiting the former at 27% and the latter at 10%, reeks of unconstitutionality.

Not long before the BJP lost three state polls in the Hindi heartland, the prime minister himself proclaimed that anyone who will promises reservation beyond 50% will only do it by fraud (beimani).

Does an Rs 8 lakh per annum income make you poor?

Setting Rs 8 lakh per annum as the upper income limit to be eligible for the EWS quota is a cruel joke to Indians who are actually poor.

Income tax return data from 2017-18 indicates that only 50 lakh people (1.23% of the country’s population) have a declared annual income higher than Rs 9.5 lakh.

One could claim that the precise number of people earning less than Rs 8 lakh is unknown, as the slab declared in income tax data is Rs 5 lakh to 9.5 lakh. However, even if we distribute people symmetrically across this range, the percentage with more than Rs 8 lakh in income does not cross 2% of India’s population.

In other words, nearly 98% of Indians earning and filing IT returns qualify as EWS, according to this law.

What lies ahead

The 124th amendment to the Constitution, brought in by the BJP, has effectively undone the constitutional doctrine of democracy and social justice. As Austin put it, “Among the upper castes-classes, ‘individual rights’ and ‘economic comfort’ have meaning; among the bottom castes-classes…they mean little or nothing”. If the custodians of the constitution do not course-correct immediately, the result will only be social conflict.

Avinash Kumar teaches at the Centre for Informal Sector and Labour Studies, School of Social Sciences, JNU and Gautam Kumar is pursuing PhD from Centre for the Study of Regional Development, School of Social Sciences, JNU.